Rivergrove points to public rights to block construction
by: Vern Uyetake, 
Modification of this headgate on Oswego Canal has emerged as a key point of contention between the city of Rivergrove and the Lake Oswego Corporation.

The city of Rivergrove is challenging an effort by the Lake Oswego Corporation to modify its headgate on Oswego Canal, saying the changes could flood homes and block public access to Oswego Lake.

Rivergrove officials are asking the city of Lake Oswego to deny the Lake Corp's construction application.

In a letter to Lake Oswego planners, Mayor Hafez Daraee said the headgate at Oswego Canal's confluence with the Tualatin River also blocks public access to the lake.

Daraee is pointing to an opinion by the Oregon Attorney General that says all Oregon waterways are public, even if the bed of the waterway is privately owned.

That opinion differs sharply from the Lake Corp's usual stance on the lake, which the agency has always deemed private.

Bill Wiley, president of the Lake Corp, said he is familiar with the attorney general's opinion but doesn't see how it applies to Oswego Lake.

'The attorney general's opinion related to public water bodies to which the public has legal access, which is not the case with Oswego Lake,' he said. 'Public access of Oswego Lake is only permitted within the confines of the two swim parks.'

Oregon law referenced in the attorney general's opinion lists Oswego Lake, at its pre-dam level, as a public and navigable waterway.

Daraee said someone in Lake Oswego, particularly planners with an eye on the headgate's redesign, should be asking whether the structure unlawfully blocks access to the lake and canal.

'This is the law; somebody needs to tell me why they haven't enforced it or why it doesn't apply,' he said.

In a letter to city planners, Daraee said proposed improvements to the headgate would restrict public use of the canal by increasing the headgate's overall size and adding protective fencing. He asks city planners to reject the design because it violates Oregon law relating to public access.

When asked about the intent of the letter, Daraee said he wasn't trying to open public access to the lake but was concerned the law was being ignored.

He said his chief aim is to protect Rivergrove homeowners from flooding if the new headgate raises the Tualatin River's water levels in bad weather.

Daraee said the Lake Corp's plan to return the headgate to its pre-1996 flood geometry does not include enough detail about how the design would impact Rivergrove properties in the event of a 10-year flood.

He said Rivergrove homeowners were not notified of the changes, which are required by law, and therefore not given time to comment on the new headgate design, now before the Lake Oswego Planning Department.

While the plan addresses 100-year and 500-year floods, Daraee said, 'No one seems to be asking whether we should be more concerned about the 10-year event.'

Currently the Lake Corp's plan states the new configuration would cause only a 'nominal increase' in water levels in the event of a 10-year flood.

Daraee said no one has quantified what 'nominal increase' means.

Wiley said he's confident there is no real cause for alarm.

'This has been a vigorous process and I'm pretty confident in my own mind that nominal means truly nominal,' he said.

FEMA officials have approved the plan. A Lake Oswego contractor has also approved the changes, saying they are below FEMA's 'no-rise' requirements.

Wiley said the headgate plays a minor role on the Tualatin River during floods. In 1996, he said, the floodwaters that flowed to Lake Oswego and Rivergrove came mostly over land.

After the flood, Wiley said the Lake Corp was not allowed to restore the damaged headgate to its former geometry. That opinion has since changed, and Wiley said the Lake Corp's aim is simply to restore the old design, replacing eroded areas around the headgate with a new, triangular structure.

'In essence what we're doing is putting the banks where they were in '96,' he said. 'Certainly there's not intent to do anything other than to put the headgate back to where it was.'

In his letter to city planners about the project, Daraee said Rivergrove properties near the headgate could be flooded even with an 'purportedly insignificant increase' in the surface area of the Tualatin River during a 10-year flood.

'The disregard for management of the river surface area during a 10-year event seems to be a not-so-subtle way of telling the residents of Rivergrove who live on the Tualatin that their homes are not as important as the homes located on Oswego Lake. I trust you can appreciate why this does not sit well with our residents,' Daraee wrote.

He said he plans additional review of the issue.

'I would rather raise the alarm now and say later I over-reacted,' Daraee said. 'I'm not trying to be the mouse that roared. I just want to make sure they're not making decisions or granting construction approval to the detriment of my city.'

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